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Claim construction: The parties’ infringement dispute involved construction of a claim limitation reciting a subscriber unit, e.g., a cell phone, that “in response to a change in accessibility of an application,” is programmed to “update [a list of applications available to the user]; and [communicate] the change to the fixed portion of the wireless [network].” The complainant unsuccessfully argued that the accused products met this limitation by updating a list of available applications on a first change in accessibility, e.g., the installation or deletion of an application, and by communicating to the network a second change in accessibility, e.g., the authorizing or cancelling of push notifications for an application. In affirming the Commission’s decision of non-infringement, the Federal Circuit observed that the limitation in dispute was written in the conjunctive and required both an update to the application list “and” a communication of the change to the fixed portion of the network in response to a single change in accessibility. The Federal Circuit further supported its decision by noting the antecedent reference in the claim requiring “the change” in accessibility be communicated to the network.

Domestic Industry: The test for the technical prong of the domestic industry requirement is essentially the same as that for infringement, i.e., a comparison of the alleged domestic product against the asserted claims. Because the product the complainant relied upon in attempting to establish domestic industry functioned in essentially the same way as the non-infringing accused products, the technical prong of the domestic industry requirement was not established.